Character Evidence

Question 1

Which FRE apply to defendants, victims, and witnesses

Answer 1

Defendants - 404-406
Victims - 404-406
Witnesses 607-609 (including defendants who act as witnesses)

Question 2

What is the general rule for admission of character evidence in civil cases?

Answer 2

It is inadmissible to prove conforming conduct with a character trait.

Question 3

What are the exceptions to the general rule for admission of character evidence in civil cases?

Answer 3

Character evidence is admissible to prove conforming conduct in a civil case when:

1) Character is an essential element of a claim or defense, or
2) Character is “at issue” in the case.

Question 4

What are the types of civil cases where character is most commonly at issue?

Answer 4

1) Defamation
2) negligent hiring
3) Negligent Entrustment
4) Child Custody

Question 5

What is the rule for introduction of character evidence in criminal cases? (FRE 404a)

Answer 5

The prosecution may not introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to have committed the crime in question.

Question 6

What is the exception to rule 404a regarding the introduction of character evidence in criminal cases?

Answer 6

The defendant may present positive character evidence that is inconsistent with the type of crime being charged.

Question 7

What are the requirements for a criminal defendant who would like to introduce positive character evidence?

Answer 7

1) must be through reputation in the community or opinion testimony
2) must directly relate to the charged character trait (ie nonviolent if violence is part of the crime charged)

Question 8

What happens when a criminal defendant uses evidence of positive character traits

Answer 8

S/he opens the door to prosecution introducing its own character evidence.

Question 9

May a criminal defendant introduce evidence of the victim’s character?

Answer 9

Yes, but only if it is relevant to one of the defenses asserted.
- Severely limited with regards to sexual misconduct cases

Question 10

What forms of evidence may a criminal defendant use when introducing evidence of a victim’s character?

Answer 10

opinion or reputation.

Question 11

What can the prosecution do after the defense introduces character evidence about the victim?

Answer 11

It can offer good character evidence about the victim only after the defendant has attacked the victim’s character.

Question 12

What is the rule of 404(b)

Answer 12

Prior bad acts are not admissible to prove conforming conduct/propensity.

Question 13

What are the exceptions to rule 404(b)’s general rule

Answer 13

Prior bad acts are admissible to show MIMIC

M - Motive
I   - Intent
M - absence of Mistake
I   - Identity
C  - Common Plan

Question 14

What is the requirement for prosecution who wants to use a prior bad act to show MIMIC?

Answer 14

Must give the defense advance notice of its intent to use a prior act at trial.

Question 15

What types of character evidence is admissible to show prior bad acts in a civil case?

Answer 15

• reputation
• opinion
• specific instances of conduct

Question 16

How may character evidence be proved in a criminal case?

Answer 16

• reputation
• opinion

NOT specific instances of conduct unless being used to show MIMIC

Question 17

What is the FRE 406 rule on Habit?

Answer 17

It is admissible to show conduct in conformity on a particular occasion.

Question 18

What words usually reference HABIT evidence and what words usually reference CHARACTER EVIDENCE

Answer 18

HABIT - “always”, “every time”

CHARACTER - “often”, “frequently”

Question 19

FRE 404(a)

Answer 19

Prohibits character traits being used for propensity purposes.

Question 20

FRE 404(b)

Answer 20

Prohibits a specific prior act unless for MIMIC

Civil Cases - specific prior acts allowed if an element or defense.
Cross - Specific instance of prior conduct are allowed in cross of character witness.